Wills and Estates

Question 1

Executing A Will - Requirements

Answer 1

(1) Testamentary Intent
(2) Testamentary Capacity
(3) Follows the statutorily required formalities

Question 2

Testamentary Intent

Answer 2

At time of execution, testator intended that this particular document be his will

Can be overcome by

(1) Undue Influence
(2) Fraud
(3) Mistake

Question 3

Undue Influence

Answer 3

Challenger must prove that the wrongdoer exerted such influence over the testator that

(1) overcame testator’s free will AND
(2) Caused testator to make a transfer that he wouldn’t otherwise have made

There’s a PRESUMPTION of undue influence IF:

(1) Wrongdoer was in a confidential relationship with testator; AND
(2) Suspicious circumstances surrounding preparation/execution of the will

Question 4

Fraud

Answer 4

(1) In the execution = Fraud as the nature of contents or the writing itself –> WILL IS INVALID
(2) In the inducement = Proof that a beneficiary made a knowingly false representation to testator for the purpose of inducing the testator to execute a will in his favor AND that the testator wouldn’t have made such a devise in absence of the representation

If only part of a will was the product of fraud –> The court can reject that fraudulent part (falls into the residuary) and probate the rest of the will

Question 5

Mistake

Answer 5

(1) In the execution - Mistake as to the nature of the document (made by testator) –> Will is invalid
(2) In the inducement - Testator executes will/clause because testator is mistaken to the true facts –> does NOT affect testamentary intent. NO RELIEF GRANTED.

Question 6

Testamentary Capacity

Answer 6

Testator must be at least 18 y/o and be of sound mind when the will is executed

Sound mind = Testator has the ability to understand

(1) nature, condition and extent of his property,
(2) Nature of the disposition he is making of his property; and
(3) Names of, and relationship to, the natural objects of his bounty

Question 7

Stocks

Answer 7

COMMON LAW: stock owned at the time of the will signing was allowed to pass in the bequest.

Later-acquired stock shares from a stock dividend would NOT be included unless the testator changed the will.

Stock splits were allowed to pass to the bequest without a change in the will.

BUT MODERN STATUTES/UPC treat stock splits and stock dividends the same - both can pass to the bequest without a new writing.

Question 8

Statutory Formaliities

Answer 8

Depends on the type of will

(1) Attested will
(2) Holographic will
(3) Contract to make a Will
(4) Joint/Mutual Will
(5) Codicil to a Will

Question 9

Attested Will

Answer 9

(1) In writing

(2) signed by testator
(Or by someone in testator’s presence who testator directs to sign)

(3) Witnessed or Attested
Attested = acknowledged by the testator before a notary public

Witnessed = Signed by TWO people - each of whom signed within a reasonable time of witnessing testator sign the will or hearing Testator acknowledge that the signature on the will in his

Witnesses can be people who are interested witnesses (beneficiaries under the will).

Question 10

Holographic Will

Answer 10

Valid under UPC IF:

(1) Material portions of the will are in the testator’s handwriting AND
(2) Testator signs the will

Question 11

Contract to Make a Will

Answer 11

Contract to dispose of a person’s property (real or personal) by will is VALID under UPC.

Contract to make or NOT revoke a will or to die intestate? –> Established by

(1) Provisions of decedent’s will stating material provisions of the K
(2) Express reference in decedent’s will to a K and extrinsic evidence proving the terms of the K; OR
(3) Writing signed by decedent that evidences the K

Question 12

Joint/Mutual Will

Answer 12

In many states –> When 2 people execute a single document as their joint will –> Presumption that the parties have contracted to NOT revoke except with both parties’ consent

UPC –> NO PRESUMPTION, revocable by either party

Question 13

Codicil

Answer 13

Instrument executed after a will that refers to another document, by adding to, explaining, or deleting from a previous testamentary instrument

MUST follow same formalities as attested will – In writing, signed be testator and witnessed/attested

Codicil republishes the will to which it refers - original will is treated as if it were written on the date the codicil was executed

Question 14

How to Revoke a Will

Answer 14

(1) Physical Act - burning, tearing, cancelling, obliterating, or destroying the entire will or any part of it

Physical act doesn’t need to touch the will but it must be done with the intent to revoke the will.

(2) Execution of a Subsequent Will
(3) Divorce (re provisions in favor of the ex-spouse)

Question 15

Revoking a Will - execution of a subsequent will

Answer 15

If subsequent will has express clause of revocation –> revokes prior will

If subsequent will can revoke by implication –> If testator intended the subsequent will to replace the former will.

Look for subsequent will disposing all or substantially all of the property disposed in the first will.

Question 16

Revoking a Will - Divorce

Answer 16

Upon divorce, provisions in favor of the ex-spouse are ineffective UNLESS the testator makes clear that such provisions were intended to survive divorce

Question 17

Methods to Revive a Will

Answer 17

Revoked will can be revived IF it’s

(1) restated
(2) re-executed or
(3) republished or
(4) there’s other clear evidence of intent to revive

Republication = resign the original will and have two witnesses attest the will

Codicil made to a revoked will revives the revoked will as of the date of the codicil

Question 18

Lost wills?

Answer 18

If the will was in the testator’s possession prior to the death and cannot be found after death –> PRESUMPTION that testator destroyed the will with the intent to revoke

Question 19

Who can have standing to contest a will?

Answer 19

Anyone with a beneficial interest if the challenge is successful

NOTE: Heirs always have standing

Question 20

Grounds for contesting an executed will

Answer 20

(1) Lack of testamentary capacity
(2) Undue Influence
(3) Mistake
(4) Fraud
(5) Ambiguity

Question 21

In terrorem Clause

Answer 21

No-Contest Clause

Attempts to disqualify anyone contesting the will from taking under it

Most courts won’t apply the clause to a beneficiary if the challenge was based on reasonable cause

Question 22

Interpreting the Will - Incorporation by Reference

Answer 22

An unattested document may be incorporated into the will if:

(1) The writing was in existence at the time of execution of the will,
(2) The language of the will manifests this intent, and
(3) Describes the writing sufficiently to permit its identification

Question 23

Interpreting the Will - Facts of Independent Signfiicance

Answer 23

A will may provide for the designation of a beneficiary or the amount of a disposition by reference to some future unattested act occurring after execution of the will

(1) Personal Property List
(2) Dispositions to an Inter Vivos Trust

Question 24

Facts of Independent Significance - Personal Property List

Answer 24

Under the UPC, Testator can write a list disposing of personal property (not $)
if the writing describes the beneficiaries and property with reasonable certainty

The writing disposes of the property even if not properly attested

The writing can be created after the will is executed

Question 25

Facts of Independent Significance - Dispositions to an Inter Vivos Trust

Answer 25

Testator can make a gift to a trust in existence at the time of his death, even if
the trust was created after the will is executed

Question 26

Limits on Testamentary Dispositions

Answer 26

(1) Spouse’s Elective Share

(2) After-Born Child

Question 27

Limits on Testamentary Dispositions - Spouses Elective Share

Answer 27

Surviving spouse can decline to take under the will or pursuant to the intestacy statute and instead take an elective share.

The spouse must make this election within the later of:

(1) 9 months after decedent’s death; OR
(2) 6 months after the probate of decedent’s will

Amount of elective share –> up to 50% of the augmented estate (depends on the length of the marriage)

Question 28

Limits on Testamentary Dispositions - After-Born Child

Answer 28

If testator does not provide for child born/adopted after making his will, the UPC protects the child from unintentional disinheritance UNLESS it appears from the will that the failure was intentional.

Question 29

Limits on Testamentary Dispositions - After-Born Child - Scenarios

Answer 29

No child living when will was executed? –> after-born child receives intestate share UNLESS

(1) Will devised all/substantially all of the estate to the other parent of the omitted child; OR
(2) It appears from the face of the will that the testator intended to not provide for the child under the will

Testator had 1+ children living when the will was executed and the will made a devise to the then-living children –> after-born child is entitled to share equally in the portion of testator’s estate devised to then-living children

Testator had living children at the time of the will’s execution but they receive nothing –> after-born child will get nothing like the other children

Question 30

Slayer Act

Answer 30

A person who participates in the felonious and intentional killing of another may not acquire property or receive any benefit as a result of that death

Slayer is deemed to have predeceased the decedent.

Question 31

Simultaneous Death

Answer 31

A person who cannot be established by clear and convincing evidence to have survived the decedent by 120 hours is deemed to have predeceased the decedent

If the time of death is cannot be determined to establish that the decedent survived the heir by 120 hours, then both the heir and decedent will be deemed to have failed to survive the other.

Will also apply to intestate succession.

Question 32

Disclaimer of Property Interests

Answer 32

A beneficiary may refuse to take a devise by filing a disclaimer that:

(1) Is in writing and signed by the disclaiming party;
(2) Declares the disclaimer;
(3) Describes the interest or power being disclaimed; and
(4) Is delivered or filed.

Disclaimer relates back to the date of decedent’s death.

The disclaiming party is treated as having predeceased Decedent.

Question 33

Classification of Testamentary Distributions

Answer 33

(1) Specific Bequest/Devise
(2) General Legacy
(3) Demonstrative Bequest/Devise

Question 34

Classification of Testamentary Distributions - Specific Bequest/Devise

Answer 34

A gift of a specific article, which is identified and
distinguished from all other things of the same kind, and is satisfied only by delivery
of the particular thing (e.g., “my gold watch”)

Question 35

Classification of Testamentary Distributions - General Legacy

Answer 35

A gift payable out of the general assets of the decedent’s estate
and not in any way separated or distinguished from other things of like kind

Question 36

Classification of Testamentary Distributions - Demonstrative Bequest/Devise

Answer 36

A bequest of a certain sum to be paid out of a
particular fund

If the fund is not in existence at Testator’s death or if there are insufficient funds,
the beneficiary is entitled to payment out of the general estate

Question 37

Ademption by Extinction

Answer 37

A gift fails because property specifically bequeathed is not in Testator’s estate at his
death (not applicable with a general gift)

“My 50 shares of XY stock to Jim” = specific disposition of the identified shares –> if Testator owns none at her death, the bequest is adeemed

“50 shares of XY stock to Jim” = general bequest –> Jim is entitled to the value of
50 shares of XY stock at date of Testator’s death

Question 38

Ademption by Satisfaction

Answer 38

A gift fails because Testator made an inter vivos gift to a beneficiary of a general or
residuary disposition with the intent that the provision of the will be satisfied.

A gift testator gave in his lifetime to a person is treated as a satisfaction of a devise
only if:

(1) The will provides for deduction of the gift,
(2) Testator declared in a contemporaneous writing that the gift is in satisfaction of the devise or that its value is to be deducted from the value of the devise, or

(3) The beneficiary acknowledged in writing that the gift is in satisfaction of the
devise or that its value is to be deducted from the value of the devise

Question 39

Abatement

Answer 39

If the assets of Testator’s estate are insufficient to satisfy all the bequests or
devises, the beneficiaries’ shares will abate (i.e., be reduced) in the following order:
(1) Property that would pass via intestacy
(2) Residuary bequests
(3) General bequests
(4) Demonstrative bequests
(5) Specific bequests

Question 40

Lapse

Answer 40

At common law, a devise lapses (fails) if the beneficiary predeceases Testator

Lapse in the body of the will –> falls into the residuary, or if no residuary, to intestacy

Total lapse in the residuary –> falls to intestacy

Partial lapse in the residuary –> falls to the other residuary takers

Question 41

Anti-Lapse Statute

Answer 41

A devise is saved if:

(1) The predeceasing beneficiary was closely related to Testator, AND
(2) The predeceasing beneficiary was survived by descendants who also
survived Testator, THEN:

Those descendants will take by anti-lapse unless the will clearly expresses a contrary intent

Question 42

Total Intestacy

Answer 42

Decedent dies without a properly executed will

Question 43

Partial Testacy

Answer 43

Decedent dies with a will that doesn’t dispose of all of Decedent’s property

Question 44

Intestate Distribution - Surviving Spouse

Answer 44

The portion of Decedent’s estate that SS takes depends on who survives Decedent

Question 45

Intestate Distribution - Surviving Spouse & No surviving descendants or parents

Answer 45

Surviving spouse takes entire intestate estate

Question 46

Intestate Distribution - Surviving Spouse & Surviving descendants are the children of both the spouse and decedent

Answer 46

Surviving spouse takes entire intestate estate

Question 47

Intestate Distribution - Surviving Spouse & no surviving decedents but decedent’s parent survive

Answer 47

Surviving spouse takes first $300,000 plus three-quarters of intestate estate

Question 48

Intestate Distribution - Surviving Spouse & Surviving descendants of decedent and also surviving step-children of decedent

Answer 48

Surviving spouse takes first $225,000 plus 1/2 of the intestate estate.

The remainder is split equally by decedent’s descendants

Question 49

Intestate Distribution - Surviving Spouse & surviving descendants of decedent are step-children of SS

Answer 49

Surviving spouse takes first $150,000 plus 1/2 of the intestate estate

Question 50

Intestate Distribution - No surviving spouse or surviving spouse is not entitled to share in the estate?

Answer 50

Descendants take by:

(1) Pure/Strict per stirpes
(2) Modern/Modified per stirpes
(3) Per capita by representation at each generation (UPC approach)

Question 51

Adopted Children

Answer 51

UPC follows a transplantation theory à an adopted child loses any relationship with natural parents and is treated as the natural-born child of the adoptive parents

An adopted child has full rights to inherit from and through his adoptive parents (and their relatives)

Question 52

Advancement

Answer 52

Inter vivos gifts from Decedent to an heir are treated as an advancement against the estate if:

(1) Stated in a contemporaneous writing by Decedent, OR

(contemporaneous with the giving of the gift)

(2) Acknowledged in a writing at any time by the heir as an advancement

Property given as an advancement is reduced from the heir’s intestate share